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Editorial: Let Google be a little evil

Google's lawyers visited the Second Circuit Court of Appeals last week for a polite conversation with three judges and attorneys from the Authors Guild. You remember -- the book-scanning thing? Yes, the case is 7 years old and still unresolved. The Circuit Court is just a way station in a longer journey -- at issue is whether the Authors Guild's class action suit should be broken apart, forcing authors and publishers to confront Google individually.

Google is going to win this thing eventually. If that makes Google evil, it is a necessary evil.

The bigger question is about the lawfulness of Google's digital library quest, and the legitimacy of the Guild's copyright charges and request for damages. There are points of similarity to the music industry's litigation saga. And major differences. Google is going to win this thing eventually. If that makes Google evil, it is a necessary evil.

Google has a complicated relationship with publishers. But it set things off badly by starting its book-digitizing project in the most cavalier way. Dragging its scanners into amenable libraries, Google began madly copying books without negotiating with publishers for rights or even asking permission. That alone set many "don't be evil" critics on edge.

Publishers sued for copyright infringement in 2005. The two sides spent years hammering out a settlement, which set a clear path for digitizing the analog book industry. The settlement was rejected in 2011 by the federal judge with authority over the case. That judge suggested a new deal with a cornerstone opt-in component in which rights-holders (authors and / or publishers) would consent to the program before Google could touch their works. Google rejected that idea, partly because many books are essentially unowned, or "orphaned" due to a writer's death or anonymity. It's easy to imagine the real reason being too much sand in the gas tank -- this is a high-volume, bulk project for Google and cannot be paced by an opt-in mechanism.

So, it was back to the adversarial struggle, with publishers (via the Authors Guild) asserting that Google massively infringed copyright, creating immense business damage by doing so. You might think the copyright charge is a slam dunk, but Google's invocation of Fair Use is readily argued. Fair Use is a judgment call with several deciding components. One of them is how much of the original work is copied. In this case, the whole darn book -- no argument there.

You might think the copyright charge is a slam dunk, but Google's invocation of Fair Use is readily argued.

Another consideration involves the purpose and character with which the copy is used. On this point, Google maintains that the work is transformed because Google publishes snippets (where it has no permission to release more). Those snippets inform internet search results, and ostensibly create a new market scenario for acquiring the book. Hence, transformation and (arguable) fair use.

Fair Use rulings are also governed, in part, by their effect on market value. There can be two aspects of this: the original work's value, and the value of a new derivative market. In the latest stage of this prolonged skirmish, things get loopy on the question of market value. The Authors Guild is claiming damages of $750 per book. Google has released portions of 4 million books (it has scanned 20 million). The Guild did its arithmetic, and is seeking $3 billion in damages. That number might seem audacious, and it might seem reminiscent of the RIAA's damage claims for music copying, but actually represents a minimum statutory damage rate per work in the US copyright code. Nevertheless, the Guild does not dispute Amazon's reprinting of first chapters and other excerpts in its "Search Inside the Book" feature, and if that exorbitant excerpting doesn't damage a book's value, it's hard to argue that Google's smaller snippets wreak any business havoc.

On the question of derivative market value (how much Google's snippets are worth to Google), the Guild surmises that Google intends to dominate a new market based on excerpts, a market that publishers would be squeezed out of. DearAuthor.com, which closely follows the case, interprets the Guild's position like this: "We sat on our asses and never thought that there would be ways we could monetize our works, but Google created a market for it and now we want the money that such a market could create."

If there is a market to be created here, Google would not decline ownership of it.

All of this summarizes the philosophical difference in copyright as conceived by rights-holders on one hand, and tech innovators on the other. Is copyright theoretical or practical? Is it abstract or concrete? Media companies often argue on the dogmatic side, as if a violation in principle necessarily causes damage in fact. Every judge in this case has acknowledged the potential benefit to society of digitizing the world's library -- or something approximating the world's library. In the circuit court that is deciding the class-action question, two of the judges burbled on about the "enormous value" Google's project could have for culture generally and authors in particular.

Google probably took the right tack at the start, building up a substantial collection of digitized books before legally sanctioning the project. The company has spent seven years proving the concept, and is selling judges on its value even as those judges are deliberating the case merits. Evil, savvy or both?

And there is no doubt of Google's imperialistic ambition. If there is a market to be created here, Google would not decline ownership of it. But hey -- investment deserves reward, the capitalist would argue, and Google invented the scanners, for Pete's sake, and contracted teams of people to copy 20 million freaking books. The publishers might complain, but how could they have ever done that? Who else is going to make that investment? Microsoft started, but bailed in 2008.

Memo to judges: Wrap this thing up, already. It's going to happen. Google stepped onto the moon, planted the flag and nobody else is going to get this essential digitization done. Is Google evil for its high-handedness? Copying millions of books without due permission lies in a gray area, if not absolutely on the dark side. But in whatever direction Google's moral compass is quivering, it's necessary. Nobody else will get the job done.